Adat Law Community and Collective Rights
The existence of collective rights judicially is fully determined by the existence of adat law community as support to the rights. Based on that thought the writer calls the suitable concept with the subjects supporting their rights is collective rights of adat law community.
In other words, withouth adat law community there will be no collective rights on land although there is land which has the status of adat rights which is controlled by individuals. The collective rights on land of an adat law community are not identical with adat rights on land which is individual in nature. Van Vollenhoven (1934) wrote that when the trade ships anchored in the archipelago at the end of XVI century what they met was not that no master land (terra nullius). The archipelagic area was not woest en ledig land based on constitutions law but it was full of social institutions and the power ordered by relatives in the form union, republic and kingdoms. The social institution and order of power is controlled by adat law regulation and not western law which becomes the reference of national law system today.
From the perspective of adat administrative law, social institution and order of power are states according to adat law and at post proclamation of independence becomes an inseperable part of the republic of Indonesia.
The adat states are also adat community (Adatrechtsgemeenschappen) both the big ones in the form of kingdoms and the small ones with various lacal nomenclatures althought it is an inseparable part of the Republic of Indonesia which is judicially still exists. The existence has halfhearted acknowledgement of article 3 UUPA. In general the power of adat law community in the form of kingdom is focused on the king personality, whereas smaller legal union, the power of community leader (with carious titles or local address), is not absolute according to Widyodipoento (1955). Besides making it as a legal action, it is also closely related to the welfare of the community.
The distinguishing factors for the community or legal association in the library of adat law are (a) territorial, (b) genealogy, and (c) genealogical-territorial.
The territorial factor which seems to be the binding to a region significantly affects the existence of a community compared to genealogical factor although genealogical factor also determines a community or legal association, but the factor cannot be separated from territorial factor because no matter how the existence in a region (territorial) which becomes the scope (lebensraum) of legal community concerned. The community or genealogical legal association is more about genealogical territorial community by nature.
The community or territorial legal association is commonly divided into (a) dorpgemeenshap (combination or village union). Whereas the genalogical community is commonly divided into (a) unilateral (both matrilineal and patrilineal) and (b) bilateral (parental). As it has been stated preciously that in general the community or genealogical adat association is found among Dayak Punan, Penyambung, Kena, Maanyan Siung Lawangan Beloh are genealogical-bilateral, namely ethnic (stam) or it parts (goelachten) which is influenced by territorial factor (The Haar-Poesponoto, 2001).
All forms of communitty or adat legal association in their establishment process is a natuunoodwendigheid, a meta juridical reality which no one thinks to dismiss it. Ter Haar (1939) defines is a geordende groepen van biljvenkarakter met eigen bewind materiel en immateriel vermogen. The elements of the definition are the criteria for the community existence or adat law association: (a) a permanent group order, (b) self authority (equipped with assistant), and (c) material and non-material wealth (including land and its lebensraum).
Altough the community never thinks of dismissing it, the community or adat law association is not free from change. This is according to Ter Haar-Poesponoto (2001) I Due to various factors toward a change, especially the desire to be independent, reduction of forest product and availability of land and conflict between relatives. Besides that, the change can also accur due to authority or strength from outside.
The change can happen when the elements which becomes the measurement of the criteria for its existence undergoes a shift. The non-existance of one element of collective rights may cause individual rights after special procedure involving the community through adat leaders and special condition for its effectiveness. Moreover besides rights on land based on UUPA (complete with its certificate), there is a term "adat land" or Land of Adat Rights which is surely individual rights. The adat rights might be derived from collective rights of adat law community which weakens due to the increase of individual rights and finally disappear.
Such land of adat rights is no longer collective rights becomes individual rights which has not been certified can be interpreted as collective rights which has left its existence criteria and it leads to the process of collective rights elimination which merely exists as a logical consequence of stipulation of Article 3 UUPA.
The fact makes the acknowledgement of UUPA to the collective rights on a condition that as long as it still exists as social reality. The existence of social reality is determined by the juridical condition of collective right of adat law community as a subject to support the rights. If one of the conditions of its existence is not present, the collective rights also do not exist completely which cannot be substituted with a new form.
Book of Adat Law that use in this reference :
- Jurnal Ilmu Hukum Amanna Gappa Vol. 16 Nomor 3.
|Picture reference : Adat Law|
Labels: Adat Law